Wednesday, December 21, 2011

How dare you "spoil" my evidence!

         Sometimes in a case evidence can “disappear” for lack of a better word. In California, this is referred to as “spoliation”, which means evidence is destroyed, altered, or not preserved for use in litigation. See Hernandez v. Garcetti (1998) 68 Cal.App.4th 675, 680. Spoliation can be unintentional or intentional. Unfortunately, when spoliation occurs, there is not much of a legal recourse available because the courts take the position that spoliation is not a viable cause of action. See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1. Alas, there may be a way to still protect your case if the evidence “disappears”. One way to protect your case is to send a “notice to preserve evidence” to the other side. The notice to preserve evidence is a request that the other side not discard of what you consider to be evidence in a case. Usually, the notice is sent before a lawsuit is filed.

            Now, let’s apply the notice to preserve in a hypothetical case where a client pedestrian was hit by a car. The driver of the car denies the accident ever took place or denies being at fault. (This is referred to as “arguing in the alternative” where the defendant somehow can deny an accident even happening but just in case the accident did happen then it was not the driver’s fault). As is my policy, I personally investigate the scene where the accident happened. I see pieces of a vehicle and tire tracks embedded in the dirt. We take photos of the debris and tire tracks. We then track down the driver and his/her vehicle. Before the lawsuit is filed we send the notice to preserve where, in the notice, we list what we ask be kept because of the pending lawsuit. If during the litigation the notice to preserve is disregarded and the evidence “disappears”, there may not be a cause of action but a trial judge can be asked to sanction the other side for failing to keep evidence after having “notice” to preserve that evidence. Sanctions can range from a simple warning to a more severe denial of a defense by the other side. The range of sanctions varies widely and usually depends on the circumstances of each case (e.g. was there a notice to preserve; who discarded the evidence; can the evidence be salvaged). The more egregious the conduct, the more severe the sanctions a court would impose.

            All in all, there may not be a cause of action to sue for spoliation of evidence, but the court can fashion a remedy powerful enough to affect the outcome of the case. When confronted with a case where evidence may disappear, intentionally or unintentionally, consider sending out a notice to preserve.

Thursday, December 8, 2011

Is anyone else listening in on this conversation?

California is very protective of the rights of its citizens. One is a right to privacy when speaking on the phone; however, like many laws, there are exceptions so do not assume all calls are confidential. This brief article will not address any of the exceptions which would allow someone to record or listen in on your call. Rather, this article will focus in on when a person makes a call to a business and the right the caller may have that the call is not listened in on or recorded. 

Generally, California Penal Code 632 prohibits the recording or eavesdropping of confidential communications without the consent of all parties. A case recently decided by the California Appellate Court involved a customer who called a business and spoke with the company representative.SeeAmanda Kight v. Cashcall, Inc. It is an interesting case because it affects almost anyone who has called a company and spoken with a representative. While on the phone the caller claimed not to be aware the call was either being listened in or recorded by a company supervisor. The customer later found out the call was recorded or listened in on and believed his/her right to privacy was violated. A lawsuit followed. Two interesting topics were raised by the Court that may be of interest to people making calls to companies and to companies with this practice.

First, the Appellate Court addressed the question of who is a "party". The business claimed there was no eavesdropping by a third party. i.e. the supervisor, because the supervisor and company representative both worked for the company. Therefore, the call was listened in by one party, the company. Interesting argument except the Appellate Court disagreed and opined that a person under the statute included both a person and corporation. Next, the Appellate Court also found no explicit exception that allowed a company to monitor phone calls, even if for a legitimate business purpose, which brings us to the second issue.

In the second issue the company argued the caller could not have expected the conversation to be confidential because the company discloses the call may be monitored or recorded. This disclosure is very typical of what a lot of us hear when we call almost any form of business. But, even with the purported disclosure, the Appellate Court held that the disclosure was not adequate “as a matter of law”, a term of art. According to the Appellate Court, the company had the burden to prove they did all they could to make it clear the calls were being recorded or monitored. The company, however, according to the Appellate Court, did not meet its burden “as a matter of law” because (1) the company could not prove that all calls made to and from the company gave a disclosure; (2) the specific disclosure used by the company suggested that only the current call was being monitored or recorded and not any future calls or even transferred calls; and (3), it was possible for a caller to avoid hearing a disclosure at all by pressing “0” to get an operator.

To sum it up, if callers expect their calls to be confidential they should make sure they know who or what is listening or recording their calls. For companies, make sure all calls to and from your business to customers give an adequate disclosure and try to prevent customers from bypassing the disclosure when the customer calls your company and searches for that all too common “press zero for the operator” option.

Additional Resources

Attorney Angelo F. Campano; Tel: 661-945-5300